G. VISHWANATHAN ETC. versus THE HONBLE SPEAKER TAMIL NADU LEGISLATIVE ASSEMBLY, MADRAS AND ANR.

Citation: [1996] 1 S.C.R. 895 · Decided: 24-01-1996 · Supreme Court of India · Bench: A.M. AHMADI · Disposal: Dismissed

Judgment (excerpt)

{ 
•. 
... 
G. YISHWANATHAN ETC. 
v. 
THE HON'BLE SPEAKER TAMIL NADU LEGISLATIVE 
ASSEMBLY, MADRAS AND ANR. 
JANUARY 24, 1996 
[AM. AHMADI, CJ! AND K.S. PARIPOORNAN, J.] 
Constitution of India, 1950 : Articles 190(3)(a) and 191(2)-Tenth 
Schedule-Para 2(1)(a) read with Expla11atio11-illte1pretation of 
Tamil Nadu Assembly (Disqualification on Ground of Defections 
Rules, 1986 : 
Legislative Asscmbly-Member--Disqualification-Expulsion of mem-
A 
B 
c 
ber for anti party activities-Speaker's order decla1ing hint 'unattached'-
Member joining another party-Held such a member has given his member-
D 
shi11 volwztari(v--Held disqualified under provisions of Tenth Schedule--
Labelling of 11ie111ber as unattached has no recognition under Tenth Schedule. 
Defection-Disqualification-Expression 'voluntarily given up his 
membership'-Scope of-Held action of giving up p01ty membe1'hip may be E 
express or in1plied. 
Legal ficti01t-Deeming provision-Competence of Legislature to 
enact-Held deeming fiction must be given full effect to. 
The question in these appeals is whether a member of 8, House, 
F 
belonging to a political party, become disqualified as having voluntarily 
given up his membership of such political party on his joining another 
political party after his expulsion from the former. The appellants con-
tested election as official candidates of the All India Dravida Muonetra 
Khazhagam party and were elected as members or the Tamil Nadu Legis- G 
Iative Assembly in the general elections held in 1991. Both or them were 
expelled from the All India Dravida Munnetra KJiazhagam party for their 
anti-party activities. By his order dated March 16, 1994 the Speaker 
declared both of them as 'unattached' members or the Assembly. On 
March 6, 1;95 the Secretary Legislative Assembly issued a notice to both 
the appellants under section 7 of the Tamil Nadu Assembly (Disqualifica- H 
895 
896 
SUPREME COURT REPORTS 
(1996] 1 S.C.R. 
A tion on Ground of Defections) Rules, 1986 proposing to disqualify them 
from the membership of the House on the ground that both the appellants 
have joined another (new) party called Maru Malarchi Dravida Munnetra 
Khazhagam. The appellants unsuccessfully assailed the validity of the said 
notice before the High Court. Thereafter, the appellants tiled repre· 
B 
sentations before the Speaker of the Assembly, stating that they were 
"unattached members" of the Assembly and so the provisions of the Tenth 
Schedule o!'the Constitution of India regarding disqualifications were not 
applicable to them. The Speaker by its order dated April 20, 1995 held that 
the appellants had incurred disqualification for being members of the 
~
Tamil Nadu Legislative Assembly under Article 191(2) of the Constitution 
C of India read with clause (a) of sub-para (1) of Paragrarh 2 of Tenth 
Schedule and had consequently ceased to be members of the Assembly with 
immediate effect. The High Court confirmed the conclusion of the Speaker 
that the a11pellants have voluntarily given up their membership of the 
political party that had set them up as candidates and have thereby 
D incurred the disqualification for being members of the Assembly under 
Article 191(2) of the Constitution read with clause (a) of sub-paragraph 
(1) of paragraph 2 of the Tenth Schedule. 
In appeal to this Court it was contended for the appellants that (i) 
Paragraph 2(a) of the Tenth Schedule of the Constitution comes into play 
E only to disqualify a member who had voluntarily given up his membership 
of the political party that had set him up as a candidate, and not when he 
was expelled from the party and declared "unattached" i.e., not belonging 
to any political party; (ii) paragraph 2(a) "ill apply only when a member 
himself of his rmn volition gives up his membership of the party. Any 
F 
member thrown out or expelled from the party that had set him up as a 
candidate, will not fall within the mischief of paragraph 2(a). By expulsion, 
the member thro..u out will 'cease' to be a member of the party that set 
him up as a candidate and even if he joins another party thereafier, it will 
not be a case of 'voluntmily' giving up his membe1~hip of the political party 
that had set him up as a candidate for the elections. 
G 
On behalf of the respondents it was contended that (i) the Tenth 
Schedule of the Constitution should be interpreted strictly; (ii) though 
expulsion by the political party that had set up a 1ierson as a candidate by 
itself

Excerpt shown. Read the full judgment & AI analysis in Lexace.